State v. Adams , 28 N.C. App. 186 ( 1975 )

ARNOLD, Judge.

We disagree with defendant’s argument that the trial judge erred in failing to make findings of fact, and failing to enter an adjudication based on its findings, as to the voluntariness of his confession at the conclusion of a voir dire hearing.

There was competent testimony on voir dire by Officer Horner to support the court’s finding “as a fact that the defendant was questioned by the officer in the interrogation room at the Cabarrus County Law Enforcement Center; that he was advised of his rights and understood the rights that were advised him and that any statement which he made was freely, voluntarily and without any fear or coercion or promise or hope of reward and may be admitted into evidence.” Defendant offered no evidence on the voir dire hearing.

The courts of North Carolina recognize that it is the better practice for the court to find the facts upon which it concludes a confession is admissible. However, as in this case, when no conflicting testimony is offered on vire dire, it is not error for the judge to admit the confession without making specific findings. State v. Simmons, 286 N.C. 681, 213 S.E. 2d 280 (1975) ; State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971) ; State v. Keith, 266 N.C. 263, 145 S.E. 2d 841 (1966) ; In re Simmons, 24 N.C. App. 28, 210 S.E. 2d 84 (1974).

Defendant next contends that the trial court erred when it allowed into evidence State’s exhibits 1-A, 1-B (credit cards), 2-A, 2B (cans of motor oil), 3 and 4 (cans of automobile treatment fluid). Defendant argues that there was no evidence that the items were the property of Pilot Oil Corporation or that they had been stolen from the Woodlawn Road Station. We see no merit in defendant’s argument.

It is competent in a prosecution for breaking and entering and larceny to show all the goods lost from a store and to trace some or all of the articles to a defendant. State v. Richardson, 8 N.C. App. 298, 174 S.E. 2d 77 (1970). The manager of the Pilot Corp. Station, Mr. Helms, positively identified the credit cards as the property of the Pilot Corp. Station he managed. Mr. Helms further testified that the other exhibits were similar or of the same brand as the merchandise taken from the station on the night of the alleged offense.

Finally, defendant argues that the trial court erred in instructing the jury on the doctrine of possession of recently stolen property. It is defendant’s position that he was not in active or constructive possession of the stolen property since he was not the owner or driver of the car in which the property was discovered.

At the time of the robbery a witness observed three black males carrying items from the station to a yellow Falcon. The police were notified and given a description of the yellow Falcon. Less than two hours later three black males were arrested in a ditch near a yellow Falcon in which the police found the stolen property. One of these three men was the defendant, and following- his arrest defendant confessed to the crime.

Any error in the court’s instruction regarding the doctrine of possession of recently stolen property was harmless beyond a reasonable doubt as to this defendant.

The defendant had a fair trial, and we can find no prejudicial error.

No error.

Judges Britt and Vaughn concur.